' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioner filed a suit for permanent injunction against the respondent claiming that respondent executed a mortgage Deed bearing No,2379 Book No,1 registered on 8-12-1983 with Sub-Registrar and received Rs,15000 as mortgaged money.
As per terms of mortgage deed it was agreed that respondent will return the mortgage money up to 15-6-1984 and in case of default of payment of the mortgage money the land, subject-matter of mortgage deed, will be deemed to be foreclosed in his favour. It is asserted that respondent has failed to return the mortgage money within the stipulated period. Hence, according to terms, mortgagee become the owner of mortgaged land and as such a declaratory decree along with permanent injunction was prayed.
2. The respondent controverted the assertions and set up a defence that no doubt the mortgage deed was executed but the same was cancelled as the petitioner has failed to pay Rs,15000.
3. Out of divergent pleadings of parties, the leaned trial court framed the following issues:--- "Issues:
(1) Whether the plaintiff has got no cause of action?
(2) Whether the plaintiff estopped to file this suit because of his act and conduct?
(3) Whether the suit is not maintainable in its present form?
(4) Whether the plaintiffs are entitled to decree for declaration as prayed?
(5) Relief.
4. Both the parties adduced their respective evidence both oral as well as documentary. Learned trial Court vide judgment and decree dated 26-1-1990 decreed the suit. The respondent filed an appeal against the said judgment and decree which was allowed vide judgment dated 20-4-1992.
Hence, the present petition.
5. Learned counsel for the petitioner submits that it is an admitted fact between the parties that there is a registered document of mortgage. The respondent claim is that the document was registered but no payment was made and as such it was cancelled. He submits that no cancellation has been produced on record and it is the oral assertion of respondent which could not be believed and the learned appellate court has rightly disbelieved the respondent's defence but has failed to appreciate that when the document of mortgage is proved it is to be read in toto and admittedly on failure of respondent to pay the mortgage money he become the absolute owner of mortgage land and as such the impugned judgment and decree suffers from misreading and non-reading of record.
6. Learned counsel for respondent submits that the witnesses produced by her specifically deposed that no amount was paid in terms of mortgage deed and it was settled between the parties that document of mortgage will be deemed to be cancelled. He supports the impugned judgment and decree passed by the learned appellate court.
7. Heard. Record perused.
8 The controversy between the parties is that the mortgage deed was executed between the parties which was registered with Sub-Registrar Shuja Abad. The mortgage money is Rs,15000/-.
Admittedly the respondent handed over the possession of land to petitioner. It is also an admitted fact that the agreement between the parties for return of mortgage money was for 6 months which was valid upto 15-6-1984. The respondent has admitted the execution of mortgage deed but has refused to receive the consideration and claimed that the same has been cancelled as nol amount was paid to her. Learned appellate court has repelled her arguments and held that the execution of mortgage deed is proved. The respondent has not assailed this finding of learned appellate court and as such it become final against her.
9. As far as the claim of respondent that she become the owner of mortgaged land is concerned the argument of learned counsel has no force. Mortgage of different kinds are governed under section 58 of the Transfer of Property Act. In the present transaction of mortgage the possession of mortgaged property has been delivered to the mortgagee. Sectioa 58(a) is read as under:- "58. "Mortgage," "mortgagor" "Mortgagee", "mortgage-money" and "mortgage-deed" defined.---
(a) Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability."
10.
10. The perusal of section 58(a) shows that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
1:. Clause (c) of section 58 is relevant for the purpose of present petition which is read as under:--- "(c) Mortgage by conditional sale.--- Where the mortgagor ostensaibly sells the mortgaged property-- ' on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or ' on condition that on such payment being made the sale shall become void, or ' on condition that on such payment being made the buyer shall transfer the property to the seller, ' the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: ' [Provided that no such transaction shall be deemed to be mortgage, unless the condition is embodied in the document which effect or purports to effect the sale;]"
12. As the mortgage is a transfer of interest in the immovable property and admittedly is not of ownership. Section 60 of the Transfer of Property Act deals with the equity of redemption of mortgage which is read as under:- "S0. Rights of mortgagor to redeem.--- At any time after the principal money has become [due], the mortgagor has right, on payment or tender, at a proper time and place, of the mortgage- money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of he mortgagee], (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: ' Provided that the right conferred by this section has not been extinguished by the act of the parties or by [decree] of a court.
' The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
' Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgage, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
13. The perusal of document of mortgage deed shows that it is a mortgage by conditional sale as defined in Clause (c) of section 58 of Transfer of Property Act and as such under section 60 of Transfer of Property Act the mortgagor has a right to get the property redeemed at any time if the principal money has become due, provided that his/her right has not been extinguished by the act of parties and by the decree of court.
14. Admittedly in the present case no decree has been passed under section 34 of C.P.C.
15. The provisions of section 60 of Transfer of Property Act is a statutory right through which the mortgagor has a right to redeem her property where the transaction is of mortgage irrespective therefore of a stipulated condition in the mortgage deed to the effect that if the mortgage is not redeemed within a specified period the land will become the absolute property of mortgagee.
Section 60 of Transfer of Property Act affirms the right of redemption in all mortgages and no clog can be put against the statutory rights. The right of redemption is available under section 60 of Transfer of Property Act cannot be controlled by an agreement between the mortgagee and mortgagor. In Vernon V. Bethell (1762-1-Eden-113), Lord Henly opined as under:- "A condition converting a mortgage into a sale is invalid as a clog on the equity of. Redemption.
This Court, as a Court of conscience, is very jealous of persons taking securities for a loan and converting such securities into purchase. And therefore I take it to be an established rule, that a mortgagee can never provide at the time of making the loan for any event or condition on which the equity of redemption shall be discharged and the conveyance made absolute. And there is great reason and justice in this rule, for necessitous men are not, truly speaking, free men, but to answer a present exigency, will submit to any terms that the crafty may impose upon them."
16. In view of the statutory provision of law it is clear that the transaction entered into between the parties is a mortgage by conditional sale and the right of redemption will continue and subsist even after the expiry of 6 months as mentioned in the mortgage deed the mortgagee could get her property redeemed at any time within the period of limitation as prescribed by Article 148 of the Limitation Act.
17. The learned appellate court has held that mortgage deed was executed between the parties and the mortgage money was also paid to the respondent and the respondent has failed to prove on record that mortgage deed stand cancelled. Learned appellate court has held that the suit for declaration on the basis of mortgage deed is not maintainable and on this point of law dismissed the suit.
18. The transaction of mortgage by conditional sale is proved between the parties and as such the respondent is entitled for redemption of mortgaged property under Article 148 of the Limitation Act which provides that limitation is 60 years from the date of mortgage.
19. There is another aspect of this case that respondent is denying the fact of receipt of mortgage money but she is not deposing a single word that if the amount of mortgage has not paid to her why she has not claimed the possession of mortgage land which is admittedly with the petitioner. It is also an admitted fact on record that no suit was filed by the respondent for repossession of land which was natural in case the mortgage money was not received by her. The conclusion of the above facts available on record is that the respondent mortgaged her property against consideration of Rs,15000/- in favour of petitioner, she has handed over the possession of mortgaged property to petitioner but the petitioner has not become the owner of mortgaged land as wrongly claimed by him. Under section 60 of Transfer of Property Act the equity of redemption is available to respondent and she may get her property redeemed subject to return of Rs,15000, the mortgage money within the period as prescribed by Article 148 of the Limitation Act.
20. Upshot of above discussion is that this petition fails and is dismissed on the above said grounds.